I am Lawrence Lessig, activist and law prof at Harvard, here to talk about McCutcheon vs FEC -- the case SCOTUS heard this week that could end contribution limits to candidates. AMA.
Oct 11th 2013 by lessig • 34 Questions • 615 Points
UPDATE: Thanks for the questions. It's 15:51, and I need to race to a meeting. I think I've answered everything asked so far. I'll check back later for more. And PLEASE join rootsrikers.org.
First: Please help fix our election system by supporting the Grassroots Democracy Act. We need citizen-funded elections.
And click here to watch my recent TED Talk on this subject:
The Supreme Court heard a case this week that, if decided in a way that I'm hopeful won't come to pass, could, unimaginably, deepen the corrupting influence that private money has over our political institutions. The court could eliminate aggregate caps on how much an individual may donate to different candidates during an election cycle; it might even decide to do away all limits on the size of donations to particular candidates. (Now at $2,600, donating the max is an opportunity taken by only .05% of Americans.)
Critics say such limits “abridge” their “freedom of speech.” But the court has recognized that preventing "corruption" is a "compelling interest" that can legitimate contributions caps.
I believe SCOTUS's decision will hinge on the justices' understanding of what "corruption" is: Corruption ought be understood to mean something grander than the petty quid pro quo, brown paper bag corruption that makes for an engaging episode of a TV drama. Rather, it must be taken to mean, as the framers understood it, the creation of an "improper dependence" -- such as the dependence on an extremely small, extremely moneyed, class of donors that substantially defines the operations of Congress today.
I filed a brief in McCutcheon, based on a review of the framers' understanding of the meaning of "corruption", which I described in the Daily Beast:
Indeed, the most common kind of institutional "corruption" that they discussed was an institution that developed an “improper dependence.” Fully 29 examples—almost five times the number of “quid pro quo” examples—were cases of “improper dependence.” Their concern was to craft a constitution that would avoid institutions becoming improperly dependent—as Parliament, for example, had become improperly dependent upon the king.
These conclusions should matter to the committed originalist. The Framers were pretty clear about the dependence they intended Congress to have. (Or at least the House of Representatives: the Senate was different at the founding, since it was appointed by state legislatures). As Madison put it in Federalist 52, the House was to be “dependent on the People alone.” But by “the People,” Madison meant all the People. “Not the rich,” as he wrote in Federalist 57, “more than the poor.” (OK, and not women or blacks at all, but later generations would fix --those errors).
But as reddit knows, today's campaign finance laws don't make for a panacea. Whether we win or lose McCutcheon, we must work to achieve citizen funded elections to return Congress to that proper dependence on the People alone: http://www.rootstrikers.org/#!/project/we-need-citizen-funded-elections
Prof. Lessig, I've been so inspired by Rootstrikers I've A) Decided to run for office here in Texas, and B) Even if I lose, I'll continue to push for campaign finance reform.
My question, however is this - do you feel that if we had election reform that eliminated "safe seats" and gave every voter a say in the government, we could hold politicians who do put the private funders' interests above the public interest accountable? I believe this is the case myself, which is why I'm also pushing for adoption of a Single Transferable Vote system here in Texas.
Secondly, what we do within the party system to spread awareness of campaign finance as "the First Issue" and get people knowledgeable about how much money influences politics and what we can do about it. I decided to put my name out there as a candidate to give a face to the issue, and I'll be pushing the Texas Democratic Party to add campaign finance as a plank to their official platform.
Finally, I know Rootstrikers isn't able to endorse campaigns, but would YOU, personally, be willing to endorse my campaign? You can find out more at www.boykotx.org
(Oh, I may be switching races to another legislative seat - we've got three people in the HD136 primary and they ALL back campaign finance reform, but I still intend to run for one seat or the other, even if it would require me moving to an apartment in the next month in a new district.)
-- Brian Boyko -- Candidate, Democrat, Texas Lege
Thanks for running and making this an important issue. And when you're settled on a district, happy to consider endorsing (if that would help...).
Re the parties: We need to pressure them, as they won't change without it. And it might be that eliminating safe seats would help, but only if we also change the way elections are funded.
It seems, though, that this case is just the logical outgrowth of Citizens United. That case said that it was the speech that mattered, not who the parties were. So, if that is the case, how can the court justify limiting donations to candidates, but allowing unlimited donations to shady, "unaffiliated" PACs that have almost no accountablility? Wouldn't it be better to just be open about who the money is going toward?
Transparency would be good, but this case isn't about transparency. Nor is it about what Citizens United is about — expenditures. This case is about contributions, which since Buckley v. Valeo, have been treated differently from expenditures.
I am a longtime follower and big fan of your work - also of the work of James Fishkin on deliberative polling. Awhile back you called for a series of citizen conventions using deliberative polling. I was always very compelled by the idea that these conventions could bring to light the views of truly ordinary citizens who have had time to educate themselves and think deeply about issues relating to the corrupting influence of money in politics. And hopefully their views would carry weight with the nation at large and bring attention to the importance of these issues.
Do you think these conventions are feasible? Do you think they would carry legitimacy in convincing the American people of the best solution to our campaign finance problems? Have you looked into how much it would cost to simply organize these privately? Have you considered pitching the idea as a sort of reality TV show to increase publicity?
Thank you and keep up all your great work!
I do, and Jim and I are hatching a plan to do a series of them.
Big fan of publically financed elections. But struggling with some specifics....
How exactly do we get to publically funded elections? It seems like the very people in office are those who got there without publically funded elections. How do we pressure them to change?
How would funding levels be determined? What if we had a very popular candidate, and a very unpopular candidate? They'd receive the same amount of funding? How would an "unknown" candidate qualify for funding? How would we determine who is a "serious" candidate and who is just jumping into the campaign for the heck of it?
Yes, getting them to change the system they depend on will be really hard. That's the challenge we have: building a strong enough outsider movement to make the pressure on them unavoidable.
I support bottom up funding — like vouchers, or coupons — with each citizen given the same amount. See, e.g., http://represent.us and the American Anti-corruption Act or my Grant and Franklin project.
And btw: join Rootstrikers.org
I love that Benedict Cumberbatch's AMA is at the exact same time as this one and it's 20 times as popular.
So if I understand this correctly, the best case scenario for this decision isn't that things will suck less, but that they won't suck more than they already do?
Too early to speak about probabilities. Best case in my view is that the Court looks more carefully at what the word "corruption" should mean to them. And if they get that right, there's a real chance they have a way eventually to end superpacs.
In what specific ways has Citizens United changed elections since it was upheld by the Supreme Court?
A radical increase in superpac spending. See the GREAT report by Demos
Professor thanks for taking the time. What do you think of this proposal for improving the election process and removing corruption:
compel "compact" congressional districts that must, as closely as possible, conform to county and city (town, village) limits
- creed, race, etc "blind"
- created by an independent citizens board
compel photo ID or fingerprint to prove residency in the political jurisdiction
compel "total elected limits" (I like 18 years of total elected office from dogcatcher to President)
compel removal of Party affiliation from ballots
compel spending limits of $1 per registered voter in the political jurisdiction (President = $400 million since 400 million in country, dogcatcher = maybe 3,000) ... regardless of source
compel complete transparency of the individuals behind a donation (regardless of front organization)
- must be human (anti-Citizen's United people should love that)
- must be citizens of the political jurisdiction (e.g. all State election money must come from citizens of the State)
- must be disclosed in public media by recipient within 5 days of receipt or by election day whichever is earliest
- any donations received that do not meet the above requirements go immediately to the US Treasury
compel "pro-rata" EC splits in ALL States
If I can add an item 0 (which for geeks is the first number): "Publicly fund public elections" then I'd be happy to consider the others.
Professor, in your opinion who would like to see as president next term?
Someone who promised to make ending this corruption issue #1 — Dem or Rep.
Professor Lessig, I have been a supporter of yours, but there is a question that I feel needs to be answered. How can you justify participating in the secret Bilderberg meeting this year?
What is there to justify? I heard views I hadn't heard before. They heard views (mine) they hadn't heard before. No money changes hands. No decisions are made (or at least none with me). There are so many obvious corruptions causing real harm in this society; this didn't seem high on that list.
With the dysfunction in government now the #1 issue to most Americans (gallup poll), do you think Americans are finally ready for bold solutions, like holding a constitutional convention to propose a 28th Amendment to fix it?
I've seen you suggest it in a few places, and you even had a group working on this for awhile, but what's the best way to actually make something like this happen and what groups are working on it right now?
Thank you for being awesome. Please keep doing that.
America needs to recognize link between disfunction and corruption, because they are intimately linked. And when we succeed in making that link clear, they will be open to the most likely solution. My view is that Congress is not going to pass any useful amendment to the states. The only constitutional remedy is an Article V convention. I support that movement, and especially the great orgs like Wolf-PAC who are pushing it.
Prof. Lessig - Thank you in advance for doing this AMA.
Citizens United raises a question of the equal footing (or lack thereof) between ordinary citizens and large corporations with respect to influencing politics. On a broader level, does the government have a role, or a duty, to act as a defender, or an equalizer, of ordinary citizens to protect them from unfair advantage taking by large corporations? How do you see that role (if it exists) playing out in the near future, ideally and in reality?
I'm not an equalizer. I am a corruption fighter. The objection of the government should not be to level the playing field. Who even knows what that would mean? The objective of the government should be to eliminate corruption. We do that by re-creating the dependence the framers meant Congress to have — on the People, and not on the Lesters.
I have a few questions professor:
1) Because the plaintiff in McCutcheon v. FEC wants to make contributions in non-corrupting amounts (the base limits), how is this corrupting?
2) How realistic were the scenarios offered by Justices Kagan and Breyer regarding PACs funneling contributions to other campaigns? If a contributor knew it was going to another campaign, it would be earmarked and go against the contributor's limit. If the contributor didn't know, wouldn't it be odd that a PAC was soliciting contributions and then funneling all those amounts to another campaign. It just didn't seem realistic to me but maybe you have another take.
3) What do you make of Prof. Rick Hasen's critique of your originalist argument regarding the original construction of "corruption"?
1): It is not "quid pro quo" corrupting; it is corrupting of the dependence intended by the framers. See the brief or The Atlantic essay. 2) I think the effort to show this is quid pro quo corruption is not useful. 3) Hasen hasn't criticized the substance of the argument — namely that the framers used the word "corruption" as our research says. He has criticized the strategy. He doesn't believe the originalists will be guided by an originalist argument if it produces liberal results. He's wrong about that historically. I don't know if he'll be wrong about that here.
The evidence seems to be that things like Citizens United serve only to change how money is spent and not how much is spent. Given that, how is this doing anything other than rearranging deck chairs? In fact, how is candidate campaigns getting the money directly not better than it getting funneled through a PAC? Don't candidate campaigns have stricter disclosure requirements?
More fundamentally, though, what is your evidence that this is even the right battle to be fighting? Republicans were able to win 54% of House seats last year with 47% of the vote. It's a similar story at the state level in some places. Michiganders voted 53%-46% for Democrats for their state House last year, yet 54% of seats went to...Republicans. None of this is the fault of campaign finance rules, it's the fault of the single-member-district voting system and the distortions (willful or otherwise) it allows.
I realize that campaign finance is a sexy issue because it involves money and everyone loves moralizing about money, but how are the structural issues with our voting systems--namely, single-member districts, low-turnout partisan primaries, and the specter of vote-splitting--not the more serious problem? And why aren't more of your and other people's resources directed towards fixing them? Especially given that there is no constitutional obstacle to many of the solutions as there appears to be with things like Citizens United. Many states could implement ranked-choice voting for congressional elections through a ballot initiative, for instance.
I don't believe the problem is how much money is spent. The problem is how the money gets raised. Change the way you raise the money, and you change the incentives of representatives in the system.
What can we as common citizens do to make sure that McCutcheon is decided in a way that doesn't take more power out of our hands and give it to the more well off members of society?
EDIT: a word
My experience is that activism directed at the Court is self-defeating. The arguments have been made. The decision will come soon enough. Regardless of what they do, we have lots of work to do to bring about the real change that is needed here.
Professor, why throw your support behind the Grassroots Democracy Act instead of the American Anti-Corruption Act?
Is one a better piece of legislation than the other?
I love both, and they are different. The AA Act is the most ambitious reform proposal in a century. The Sarbanes bill tackles one part of the reform — the funding of elections.
What about the current state of the mainstream media? Technically we may have a free press and free speech, but the country's attention is owned by a minority of media executives. How can we expect the public to be informed with the overwhelming misinformation found in state and party sponsored propaganda?
We'll need to build a network, that allows people who aren't being paid to say what they're saying to speak, and systems on that network that help elevate the useful and constructive speech, above the din of the mainstream blather. Something like ... oh wait, you did that already. Never mind.
And btw: join Rootstrikers.org
Whoa, I didn't realize this was up for debate. So, this would just exacerbate all of the problems with Citizens United?
big time. We will move from Lesterland (where 150,000 citizens are the relevant funders) to Sheldon City (where 40,000 citizens are the relevant funders).